The Queen v. Hem apala 313 [In the Court of Criminal A ppeal] -1863 Present: Basnayake C. J. (President), Stoat, I., and Abeyesundere, J. THE QUEEN v. A. D. HEMAPALA Appeal No. 230 of 1960, with Application No. 263 S. C. 41—M. C. Horana, 27640 Privy Council—Right of appeal thereto in criminal cases from Ceylon— Applicability to Ceylon of the judicial prerogative of the Queen of England—Position of Sove­ reign of Ceylon— Ceylon (Constitution) Order in Council, 1946, ss. i, 25, 30, 33, 36, 45— Ceylon Independence Act, 1947, s. 1— Ceylon Independence Order in Council, 1947, s. 4— Royal Titles Act, 1953, s. 2— Royal Executive Powers and Seals Act, 1954, ss. 2, S, 9, 10— Proclamation of 23th May, 1953— Court of Criminal Appeal Ordinance, ss. 5, 23. A citizen of Ceylon does not have, since the coming into force of the Ceylon Independence Act and the Ceylon Independence Order in Council, a right to invoke the prerogative power of the Sovereign of England in Council of enter­ taining an appeal from the Courts of a British Colony in a criminal matter. The prerogative right of the Sovereign of England in Council to entertain appeals from Ceylon ceased on Ceylon becoming an independent country. Where, in an appeal from a decision of the Court o f Criminal Appeal, the Judicial Committee of the Privy Council, reversing the decision of the Court of Criminal Appeal, quashed the conviction o f the appellant, and the case was sent back by the Queen in Council with directions to the Court of Criminal Appeal to decide in its discretion whether there should be a new trial— Held, that the Order in Council passed by Her Majesty in Council was one which She had no power to make in respect of Ceylon. The Court of Criminal Appeal had therefore no power, in obedience to that Order in Council, to order a new trial, as the Order was not legal. Under the Court o f Criminal Appeal Ordinance, the Court o f Criminal Appeal had no discretion to order a new trial at the present stage. Nevertheless, the reversal o f the decision of the Court o f Criminal Appeal and the quashing of the appellant’s conviction were unaffected by the present decision o f the Court of Criminal Appeal, as the present decision could not affect past acts which have taken effect. A p p e a l against a conviction in a trial before the Supreme Court. Qolvin B. de Silva, with S. S. Basnayake and P. 0. Wimalanaga, for accused-appellant.— The British Sovereign continues to be the Sovereign of Ceylon too and orders made by her in the exercise of her prerogative power have the force of law not by reason of any statute but by reason of a right obtained derivatively and by reason of tradition. 13—l x v R 1BR11—1,SSS n 1 3 U The Queen v. Eemapala In matters affecting their rights, her subjects can appeal to the Queen in her Council. However, this right of appeal is not confined to her subjects, as evidenced in the case where an alien appealed to the Privy Council in a case arising in India. The Revised Legislative Enactments of Ceylon were brought into force after the attainment of Independence by Ceylon. It is note-worthy that Sections 333 and 334 of the Criminal Procedure Code, Section 23 of the Court of Criminal Appeal Ordinance and Section 40 o f the Courts Ordinance still recognise the undoubted right of appeal to Her Majesty. The phrase Her Majesty ” was not meant to connote merely a person but an Institution. The prerogative of the Queen of England who is also the Queen of Ceylon, and the legality o f her orders should be assumed until the contrary is shown. [A beyesundere , J.—Is the right of appeal to the Privy Council a right given to the subjects of the Queen only ?]. To the extent that the Queen o f England is Queen of Ceylon too the appellant is a subject of the Queen of England. The British Nationality Act (1948) of the British Parliament has express provision including Ceylon as one of the countries along with independent countries like Canada, Australia, India, Pakistan and Ghana as countries affected by its provisions. However, it must be conceded that by reason of the operation of the Ceylon Independence Act of 1948 which came into force before the British Nationality Act of the same year the latter would not be a part of the law of Ceylon. The Executive power in Ceylon is vested in Her Majesty the Queen and it is on her behalf that the Governor-General exercises it. Her Majesty is part of our Constitution. The Cabinet is collectively responsible to Parliament and Parliament to the Queen through her representative. The Cabinet as such is not the body vested with the ultimate executive power. However, since the Parliament of Ceylon is possessed of supreme legislative power, it can legislate out of this situation. One of the attributes of the Queen is that she is the fountain of Justice. Even the Judges of the Supreme Court are appointed by the Queen. [Abeybsttxdebe, J.—Courts derive their powers from the Courts Ordi­ nance. ..... Is Ceylon a territory of the Sovereign of England?] Ceylon is a territory of the Queen of England just as England is but not in the sense that the Government of England has authority over the territory of England. The authority to legislate has been lost to the Queen of England. [Basnayakk, C.J.—Has the Sovereign the ultimate judicial power?] Right along from ancient feudal times that was the position. This authority has been exercised in various forms—Orders in Council, Letters Patent, or R oyal Charter. The Queen v. Memapala 315 Counsel referred also to the following decisions andstntutorypro visions:— Pitts v. La Fontaine (1880) 6 A. C. 482 ; Performing Right Society Ltd. v. Urban District Council, Bray (1930) A. C. 396 ; Attorney-General for Ontario v. Attorney-General for Canada (1947) A. C. 127, (1947) A. E. R. 137 ; Gavin Gibson & Co. Ltd. v. Gibson (1913) 3 K. B. 379, 389 ; Britisy Coal Corporation u. King (1935) A. C. 500, 520 : Revised Edition of the Legislative Enactments Act, ss. 3 and 12 ; Royal Titles Act, s. 2 ; Ceylon (Constitution) Order in Council, 1946, ss. 36, 39, 45 ; Interpretation Ordinance, s. 2 (j). A. C. Alles, Solicitor-General, with R. S. Wanasundere, Grown Counsel, for Attorney-General.— Elizabeth II, who is described in the Royal Titles Act as Queen of Ceylon and of Her other Realms and Territories and Head of the Commonwealth, is our Sovereign. She is at the same time Sovereign o f the United Kingdom and o f certain other Dominions. The term “Crown" or “ Sovereign” is capable of more than one meaning. It may mean the office or concept of Sovereign, it may refer to the person or it may refer to the Government. In so far as the Sovereign of Ceylon is concerned—meaning the office and concept of Sovereign— we have the same Sovereign as in the United Kingdom. The Governments, however, of the United Kingdom and Ceylon are separate and distinct. Yide The Constitutional Documents— Ceylon Independence Act of 1947, Ceylon (Constitution) Order in Council, 1946, and the Defence and External Affairs agreement, particularly paragraph (1), the Government of Ceylon declare a readiness o f Ceylon to adopt and follow the resolution of past imperial conferences ” and the item relating to the succession to the Throne and Royal Title. By the enactment of the Royal Titles Act, the Sovereign is given a description with reference to Ceylon maintaining at the same time the fact of a co-existing sovereignty of the United Kingdom and some Dominions. The resulting position is that Ceylon, the United Kingdom and some of the Dominions have a single Sovereign with different aspect and Titles. The Royal Executive Powers and Seals A ct was brought into operation only this year—Yide also Jennings : Constitution of Ceylon, pages 16 to 19, 137, 245. The right of appeal to the Privy Council which existed prior to Indepen­ dence continued after Independence. It could be justified on the existing local and imperial legislation and also on the basis of the prerogative— Vide Criminal Procedure Code, Section 334 ; Court of Criminal Appeal Ordinance, Section 23 ; Courts Ordinance, Sections 39, 40, and 3 ; Privy Council Appeals Ordinance : and the 1833 Judicial Committee Acts of the United Kingdom, 3 Hi liAKN AYAiCK, C. J .— The Quean v. Hemopola Regarding the prerogative, a subject in Ceylon can appeal to the Queen who is also described as the Queen of Ceylon. Vide Nadan v. King (1928 A.C. 482); British Coal Corporation v. King (1935 A.C. 500); Attorney. General v. K. D. J. Perera (1953 A.C. 200) where the Privy Council held that the subject in Ceylon has a right to appeal to the Queen in anv matter whether civil or criminal. The Order in Council issued by the Queen is not a legislative Act but an executive or judicial act— Vide Hood Philips: Constitutional Law, page 233, and Wade and Philips : Constitutional Law, page 168. Alternatively, the Judicial Committee is nothing but a Court to which an appeal would lie and the original concept of a petition to the Queen has undergone modification in the course of history—Vide 1935 A.C. 500, 1947 A.C. 127 ; Hull v. Mckenna (1926) Irish Reports 402; Halsbury : Laws of England (3rd Edition) 374.